Comment The Current Court Order and the Lawsuit (Score 2, Informative) 184
There are a couple of stories maybe getting mixed up in this discussion.
The first story is about VISA being involved in a classic reverse-cybersquatting action.
The second story is about the most recent ruling in the case, which involvesonly the "dilution" claim, and basically claims that EVISA "dilutes" VISA because "it contains the VISA mark in its entirety". (See the full Court Order on the eff.org site or on 3Dtree.com.) This ruling if left unchallenged could result in a considerable consolidation of Internet domains in the hands of holders of "famous" common-word marks. This is a separate issue from arbitrary coined words like "Kodak". Allowing "Kodak" to control
commercial use of the word "kodak" is obviously less problematic than allowing VISA to control commercial use of the word "visa". Or it should be obvious.
The EFF is NOT assisting JSL with the lawsuit as a whole. It is only assisting JSL in trying to get the most recent ruling overturned. As for the other charges in the lawsuit as a whole, the EFF is not involved, nor should it be, because: 1. The EFF has its hands full with the continuous assualt on cyber-rights so well chronicled on slashdot day after day, and 2. the fact that a huge corporation is using the courts to try to bankrupt a small company by issuing complaint after complaint, is not news, and in any case not an issue particular to the Internet.
Still, if the EFF was as powerful as, say, the NRA, VISA would never have even filed this suit. Anyone here not join yet?
I for one don't object to Visa defending their trademark. There is nothing per se wrong with a large company sueing a small one. If I'm hurting their mark, then I deserve to be punished, small or large. Not only that, the "dilution" claim is not on its face completely absurd and abusive. This is mainly because the Federal Antidilution Act is so difficult to interpret that even different federal judges have had major differences in interpretation. We believe that EVISA does not dilute VISA, and we'd like to be able to present the facts supporting this position in a trial. We think our position is the correct one. We disagree with the current ruling because it denies JSL the chance to present evidence at a trial, and because it gives VISA and other common word trademark holders broad powers not intended by Congress.
The other charges: cybersquatting and infringement are a blatant abuse of the court system. We have to defend ourselves, and VISA is making this as expensive as possible. They are also refusing to cooperate as much as they can. If VISA really believed they had any kind of case for cybersquatting they could have submitted the case to WIPO at any time for a quick and cheap resolution. However according to the rules, they would have clearly lost. So instead they literally decided to make a "federal case" out of it, 2 years after JSL started development of evisa.com, and 4 years after development of evisa-jp.com. In all of those years, Visa never sent a cease-and-desist letter or in any way complained about JSL's use of EVISA - because VISA was not in fact concerned about infringement. They're just after the domain. Their strategy was to get a registered mark for "EVISA" and then claim that we were infringing that. When we opposed their registration, they sued us within weeks.
As for playing by the same rules, Visa has subpoenaed me and others, but has refused to allow us to subpoena the person or persons most knowledgable on their side. They have demanded hundreds of documents from us, including virtually all business records and emails (which we provided), yet they have simply refused to provide virtually any important documents to us. They have not divulged one single email. Of course, we can then appeal to the judge to make them comply, but the judge then stayed discovery pending ruling on the summary judgement motions.
It would be nice if there was some way of preventing these kinds of tactics, since they give inordinate power to large entities at the expense of the law. But that would be another discussion.
-Joe Orr
JSL
The first story is about VISA being involved in a classic reverse-cybersquatting action.
The second story is about the most recent ruling in the case, which involvesonly the "dilution" claim, and basically claims that EVISA "dilutes" VISA because "it contains the VISA mark in its entirety". (See the full Court Order on the eff.org site or on 3Dtree.com.) This ruling if left unchallenged could result in a considerable consolidation of Internet domains in the hands of holders of "famous" common-word marks. This is a separate issue from arbitrary coined words like "Kodak". Allowing "Kodak" to control
commercial use of the word "kodak" is obviously less problematic than allowing VISA to control commercial use of the word "visa". Or it should be obvious.
The EFF is NOT assisting JSL with the lawsuit as a whole. It is only assisting JSL in trying to get the most recent ruling overturned. As for the other charges in the lawsuit as a whole, the EFF is not involved, nor should it be, because: 1. The EFF has its hands full with the continuous assualt on cyber-rights so well chronicled on slashdot day after day, and 2. the fact that a huge corporation is using the courts to try to bankrupt a small company by issuing complaint after complaint, is not news, and in any case not an issue particular to the Internet.
Still, if the EFF was as powerful as, say, the NRA, VISA would never have even filed this suit. Anyone here not join yet?
I for one don't object to Visa defending their trademark. There is nothing per se wrong with a large company sueing a small one. If I'm hurting their mark, then I deserve to be punished, small or large. Not only that, the "dilution" claim is not on its face completely absurd and abusive. This is mainly because the Federal Antidilution Act is so difficult to interpret that even different federal judges have had major differences in interpretation. We believe that EVISA does not dilute VISA, and we'd like to be able to present the facts supporting this position in a trial. We think our position is the correct one. We disagree with the current ruling because it denies JSL the chance to present evidence at a trial, and because it gives VISA and other common word trademark holders broad powers not intended by Congress.
The other charges: cybersquatting and infringement are a blatant abuse of the court system. We have to defend ourselves, and VISA is making this as expensive as possible. They are also refusing to cooperate as much as they can. If VISA really believed they had any kind of case for cybersquatting they could have submitted the case to WIPO at any time for a quick and cheap resolution. However according to the rules, they would have clearly lost. So instead they literally decided to make a "federal case" out of it, 2 years after JSL started development of evisa.com, and 4 years after development of evisa-jp.com. In all of those years, Visa never sent a cease-and-desist letter or in any way complained about JSL's use of EVISA - because VISA was not in fact concerned about infringement. They're just after the domain. Their strategy was to get a registered mark for "EVISA" and then claim that we were infringing that. When we opposed their registration, they sued us within weeks.
As for playing by the same rules, Visa has subpoenaed me and others, but has refused to allow us to subpoena the person or persons most knowledgable on their side. They have demanded hundreds of documents from us, including virtually all business records and emails (which we provided), yet they have simply refused to provide virtually any important documents to us. They have not divulged one single email. Of course, we can then appeal to the judge to make them comply, but the judge then stayed discovery pending ruling on the summary judgement motions.
It would be nice if there was some way of preventing these kinds of tactics, since they give inordinate power to large entities at the expense of the law. But that would be another discussion.
-Joe Orr
JSL
